Penal Code, 1860: s.302 – Murder – Prosecution case was that the victim-deceased had gone with his family for work with the accused – Accused along with his nephew and wife of the deceased murdered the victim and buried his body in the house where they used to stay – Body of deceased was concealed underneath the wooden flooring at their place of residence and was recovered on the disclosure statement made by the wife of the deceased after removing the flooring – Conviction of appellants by courts below – On appeal, held: There is no dispute that the lock of the house was opened by the Police for the first time after appellant locked the house and went to his native village – The house was in his possession and no one had access to that house and, therefore, the burden of proving the fact that somebody had access to the house during his absence was on him in terms of s.106 of the Evidence Act – Appellant did not even suggest to the prosecution witnesses of possibility of access to the house rented by him – The testimony of PW-5 that the house was taken on rent by the appellant was proved – Appellant miserably failed to disprove the presumption under s.106 of the Evidence Act – In respect of the lady accused, recovery of dead body concealed under the wooden planks covered by mud and stones on her disclosure statement was very strong incriminating circumstance against her to maintain her conviction – Apart from that, there was a statement of PW-2 before whom she had confessed – PW-4, husband of PW-2 supported this testimony – Also the dead body was identified by PW-3 from the wearing apparels of the deceased such as sweater and a mala – None of the witnesses were cross-examined to the effect that dead body was not of the deceased – Both the courts below rightly recorded conviction of the appellants as the persons responsible for causing death of the deceased – Evidence Act, 1872 – s.106.
Evidence Act, 1872: s.106 – Burden of proof – s.106 lays down general rule about the burden of proof – This section was introduced not to relieve the prosecution of their duty but was designed to meet the situation in which it is impossible or difficult for the prosecution to establish facts which were especially within the knowledge of the accused – Penal Code, 1860 – s.302.
First Information Report: Murder case – FIR was lodged originally in Bengali language which was later translated in Nepali language – Non-examination of translator – Effect on prosecution case – Held: First Information Report was only in respect of information of death – The Investigating Officer carried out investigation de-hors the version given by the informant in the First Information Report – Therefore, non-examination of translator would not create any doubt on the prosecution case – Penal Code, 1860 – s.302.
Dismissing the appeals, the Court
HELD : 1.1 Burden of proof. Section 106 of the Evidence Act was introduced not to relieve the prosecution of their duty but it is designed to meet the situation in which it would be impossible or difficult for the prosecution to establish facts which are especially within the knowledge of the accused. [Para 14] [761-B-C]
1.2 The dead body was recovered in a gunny bag concealed under the wooden planks covered by mud and stones. The lock of the house was opened by the Police for the first time after appellant locked the house and went to his native village. Therefore, in the absence of any question on these aspects that the house was in his possession and no one had access to that house, the burden of proving the fact that somebody had access to the house during his absence was on him in terms of Section
106 of the Act. The testimony of PW-5 that the house was taken on rent by the appellant was proved and on the basis of statement of PW-3, who is a Carpenter and was residing in the same area, the appellant miserably failed to disprove the presumption under Section 106 of the Act. [Para 21] [767-B-E]
2. In respect of the lady accused, there is evidence of recovery of dead body concealed in a house on the basis of her disclosure statement, where she was allegedly living with the other appellant along with the deceased and her two children. The recovery of dead body concealed under the wooden planks covered by mud and stones is very strong incriminating circumstance against her to maintain her conviction. Apart from such incriminating circumstance, there is a statement of PW-2 before whom she has confessed. [Para 22] [767-E-G]
3. The argument that the person who translated the Bengali version into Nepali was not examined when the First Information Report was lodged is wholly inconsequential. Such First Information Report was only in respect of information of death. The Investigating Officer carried out investigation de-hors the version given by the informant in the First Information Report. Therefore, non-examination of translator would not create any doubt on the prosecution case. [Para 23] [767-G-H; 768-A]
4. Argument that no DNA Test was conducted to identify the dead body, is not tenable. The dead body was recovered on the statement of wife of the deceased who stated in the disclosure statement that dead body of her husband is concealed under the wooden planks in a room which was in her possession. Apart from the said statement, PW-3 identified the dead body from the wearing apparels of the deceased such as sweater and a mala. Therefore, the argument raised is not tenable. [Para 24] [768-B-C]
Shambu Nath Mehra v. State of Ajmer AIR 1956 SC
404 : [1956] SCR 199 ; Trimukh Maroti Kirkan v. State of Maharashtra (2006) 10 SCC 681 : [ 2006] 7 Suppl. SCR 156 ; Nika Ram v. State of Himachal Pradesh (1972) 2 SCC 80 : [1973] 1 SCR 428 ; State of Rajasthan v. Thakur Singh (2014) 12 SCC 211 : [2014]
8 SCR 18 ; Dnyaneshwar v. State of Maharashtra (2007) 10 SCC 445 : [2007] 4 SCR 248 ; Ram Gulab Chaudhary & Ors. v. State of Bihar (2001) 8 SCC
311 : [2001] 3 Suppl. SCR 279 – relied on.
Sudam Charan Dash v. State of Orissa & Anr. (2014) 2 SCC 141 : [2013] 10 SCR 284 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.